Action by tenants and other occupiers

Before raising an action the person affected by the statutory nuisance (who need not be the tenant) would need to serve a notice [1] on their landlord. This notice must:

• state the nature of the nuisance

• give 21 days for remedial action to be taken (only three days notice is required for noise nuisance)

• state that failing remedial action, the aggrieved person intends to raise an action in the sheriff court.

If after the 21 days have elapsed no action were taken to cure the statutory nuisance then a summary application may be lodged at the local sheriff court.

If the landlord disputes the details of the notice then an application must be lodged within 21 days of the expiry date of the section 82 notice.

If the sheriff is satisfied that there is a nuisance or that there has been a nuisance that is likely to recur then s/he must make either an order of abatement or an order prohibiting recurrence. If that means that works are necessary then those works must be specified. If the sheriff decides that there is a statutory nuisance which makes the premises unfit for human habitation, then s/he may make an order prohibiting the use of the premises for human habitation until the nuisance is cured. [2]

The defence of 'best practicable means' is not available for residential premises; in other words, the landlord would not be able to try to prove that s/he used the best practicable means to prevent or counteract the nuisance.

Failure by the person held to be responsible by the court for the statutory nuisance to carry out the works is a contempt of court and may be punished by the court in any way it sees fit.

In a case before the Court of Session, a tenant had taken action against her landlord using the provisions of the Environmental Protection Act 1990. She lived in a property that suffered from condensation, dampness and mould. Her contention was that the state of the premises was prejudicial to health, or even if not prejudicial to health, the state of the premises constituted a statutory nuisance, and that the landlord was responsible for the nuisance. The appeal was refused. The Court of Session determined that the flat occupied by the tenant was in such a state as to be prejudicial to health, and that the flat constituted a statutory nuisance as defined by the Environmental Protection Act 1990, and that the tenant was a person aggrieved by the statutory nuisance, but the landlord was not the person responsible. [3]

The Court held, by a majority, that the problems experienced by the tenant arose as a consequence of inadequate heating in the property. This was caused by the tenant's inability to afford to pay for more heating not the lack of adequate heating facilities.